Citation Nr: 21026078 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-53 370A DATE: April 29, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT The Veteran’s obstructive sleep apnea began during active service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have been met. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1996 to July 2006. This matter comes to the Board of Veterans’ Appeals (Board) from an April 2014 rating decision which, in pertinent part, denied entitlement to service connection for obstructive sleep apnea. In May 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In March 2020 and August 2020, the Board remanded the claim for further development. The Board notes that, in July 2020, the Veteran filed a Decision Review Request: Board Appeal (Notice of Disagreement) and selected the Evidence docket to challenge the June 19, 2020, Supplemental Statement of the Case. The Board further notes that the July 2020 form was not associated with the Veteran’s claims file until after the Board’s August 2020 remand and that, in October 2020, the Veteran was informed that his claim had been placed on the Evidence docket in the Appeals Modernization Act (AMA) system. While the July 2020 form would generally remove the pending claim from the legacy system, this decision constitutes a full grant of benefits and, thus, there is no prejudice for deciding this claim under the legacy system. Accordingly, the pending appeal for the same claim of service connection for obstructive sleep apnea in the AMA system will be removed. Entitlement to service connection for obstructive sleep apnea is granted. Service connection may be granted for a disability related to active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, a veteran must establish: (1) evidence of a current disability; (2) in-service incurrence or aggravation of an injury; and (3) a causal relationship between the current disability and the injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A November 1995 entrance examination identified no abnormalities other than a scar and identified no defects with sleep apnea. At entrance, the Veteran weighed 174 pounds. An April 1999 service treatment record showed that the Veteran weighed 200 pounds. A June 2006 service treatment record showed that the Veteran weighted 237 pounds. A July 2, 2006, service treatment record noted the Veteran’s reports of mid back pain that radiated to the upper back. He reported that the pain got intense at night and that he was unable to sleep. A July 2006 separation examination identified no abnormalities and identified no defects with sleep apnea. The Veteran denied frequent trouble sleeping in an accompanying Report of Medical History. In June 2012, the Veteran was referred to a sleep specialist for possible sleep apnea after he reported snoring at night and frequently waking up not feeling rested. In December 2012, the Veteran saw Dr. A.S., a private physician, for right shoulder pain and sleep apnea. An October 2013 sleep study confirmed a diagnosis of obstructive sleep apnea. The Veteran weighed 239 pounds. In April 2014, Dr. A.S. stated that the Veteran had longstanding sleep apnea given his body habitus and complaints of chronic fatigue and daytime somnolence. Dr. S. noted that the Veteran reported similar complaints during service. Dr. S. also noted that the Veteran was 233 pounds at separation from service and was 237 pounds at the time of the sleep study. Dr. S. opined that it was reasonable to believe that the Veteran’s sleep apnea was undiagnosed for years prior to diagnosis, especially since his weight had been stable in the interim. Between 2014 and 2016, the Veteran submitted multiple buddy statements, to include from family members and fellow veterans, indicating that the Veteran had sleeping difficulties during service, to include rough breathing, snoring, and daytime tiredness. At a May 2019 administrative hearing, the Veteran testified that he was stationed on an aircraft carrier from 2001 to 2004, at which time he worked 16-hour days as an air traffic controller. He reported that the sleeping environment was like a casket cut in half and that he had to sleep on his back. He reported that he was uncomfortable sleeping on his back. He reported that he noticed his symptoms even more after his time on the aircraft carrier and that, toward the end of his deployment, he was often restless and tired. He reported that he sought treatment during service in June 2006, at which time he reported not being able to sleep and having constant back pain. He reported that he informed the clinician that his sleeping difficulties existed for a while. In May 2020, Nurse J.K., a VA examiner, reviewed the Veteran’s treatment records and diagnosed the Veteran with sleep apnea. Nurse K. opined that the Veteran’s sleep apnea was less likely than not related to service because there was insufficient evidence of complaints or treatment of sleep apnea during service or within one year after separation and that the Veteran had several risk factors for sleep apnea, to include weight gain and advanced age in 2013. In October 2020, Dr. P.G., a VA examiner, reviewed the Veteran’s treatment records and provided an addendum opinion. Dr. G. opined that the Veteran’s sleep apnea was less likely than not related to service because the Veteran’s service treatment records showed no complaints or treatment for sleep apnea and that, at the July 2006 separation examination, the Veteran reported that his occasional sleeping difficulties were due to right scapular pain, which is not associated with the development of sleep apnea. In December 2020, Dr. R.S., a private physician, opined that the Veteran’s sleep apnea was more likely than not present for many years prior to the 2013 sleep study because sleep apnea is a chronic disease commonly present for many years before diagnosis. As a preliminary matter, the Board finds that the Veteran was in sound condition when he entered service based on the November 1995 entrance examination that identified no abnormalities other than a scar and identified no defects with sleep apnea. The Board finds that the competent and credible evidence shows a current disability and an in-service incurrence. The October 2013 sleep study confirmed a diagnosis of obstructive sleep apnea. The Veteran also credibly testified experiencing symptoms of sleep apnea while stationed on the aircraft carrier and for the remainder of his active service. The Veteran noted that these symptoms began following the long work hours and the sleeping environment on the aircraft carrier. Nurse K. and Dr. A.S. also identified weight gain as a risk factor of sleep apnea, and the Veteran’s service treatment records showed significant weight gain during service. The Board assigns probative weight to Dr. A.S.’s opinion that the Veteran’s current sleep apnea is related to service. Dr. S. opined that it was reasonable to believe that the Veteran’s sleep apnea was undiagnosed for years prior to diagnosis in 2013. The Board notes that, in 2013, the Veteran had been separated from service for only seven years. Moreover, while Dr. S. did not review the Veteran’s service treatment records, Dr. S. specifically noted the Veteran’s weight during service and since service and noted the importance of the Veteran’s stable weight since service. Dr. S.’s opinion thus links the Veteran’s current sleep apnea to his weight gain during service. The Board notes that Nurse K. also identified weight gain as a risk factor of sleep apnea. The Board also notes that Dr. S.’s opinion is consistent with the other competent and credible evidence of record, to include Dr. R.S.’s opinion and the buddy statements. The Board has considered the negative nexus opinions offered by Nurse K. and Dr. G. Both examiners, however, improperly relied on the absence of evidence during service without establishing a proper foundation for drawing such negative inferences. See Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012). While Dr. G. indicated that the Veteran’s sleeping difficulties were related to his back pain, Dr. G. did not consider the Veteran’s hearing testimony regarding the long work hours and the sleeping environment on the aircraft carrier or that his sleeping problems had existed for a while. Moreover, unlike Dr. A.S., neither Nurse K. nor Dr. G. considered the effect of the Veteran’s weight gain during service. Therefore, the Board assigns more probative weight to Dr. A.S.’s opinion rather than Nurse K.’s and Dr. G.’s opinions. (Continued on the next page)   Because the credible and competent evidence supports the Veteran’s claim, the Board finds that service connection for obstructive sleep apnea is warranted. Accordingly, the Veteran’s claim is granted. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ormson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.